Karnataka High Court
Sri Francies Rodrigues vs Sri Philip Rodrigues on 19 November, 2021
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19th DAY OF NOVEMBER, 2021
BEFORE
THE HON'BLE MR.JUSTICE PRADEEP SINGH YERUR
R.S.A. No.2077 OF 2018
BETWEEN:
SRI FRANCIES RODRIGUES,
S/O LATE LAWRENCE RODRIGUES,
AGED ABOUT 67 YEARS,
R/AT NELLIPADAU HOUSE,
UJIRE VILLAGE & POST,
BELTHANGADY TALUK,
D.K.DISTRICT - 574 240,
...APPELLANT
(BY SRI. PRASANNA V.R., ADVOCATE)
AND:
SRI PHILIP RODRIGUES,
AGED ABOUT 55 YEARS,
S/O LATE LAWRENCE RODRIGUES,
R/O NELLIPADAU HOUSE,
UJIRE VILLAGE & POST,
BELTHANGADY TALUK,
D.K.DISTRICT - 574 240.
... RESPONDENT
***
THIS APPEAL IS FILED U/S 100 OF CPC, 1908
AGAINST THE JUDGMENT AND DECREE DT. 04.07.2018 IN
RA NO.8/2017 ON THE FILE OF THE PRL. SENIOR CIVIL
JUDGE & JMFC., BELTHANGADY, CONFIRMING THE
JUDGMENT & PRELIMINARY DECREE DT. 01.03.2017 IN OS
NO.80/2008 ON THE FILE OF THE PRL CIVIL JUDGE &
JMFC, BELTHANGADY, TO THE EXTENT OF GRANTING 1/3RD
SHARE EACH TO THE DEFENDANT NOS.1 & 2.
THIS APPEAL COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT
Though this matter is listed for admission, with the consent of learned counsel for appellant the same is taken up for final disposal.
2. Heard Sri.Prasanna V.R, learned counsel for appellant.
3. It is the contention of the learned counsel for appellant that originally Alex Rodrigues was the property owner and he had three children, out of whom one Mr.Lawrence Rodrigues has three sons and four daughters. Alex Rodrigues had made a WILL bequeathing his properties to three grand sons viz., the plaintiff and defendants herein, with a condition that one share would be dedicated for the performance of marriage ceremonies of grand daughters. The WILL is not questioned as the same is admitted by the parties to the lis.
4. It is the case of the appellant/plaintiff that in accordance with the terms of the WILL and intent of the grand father Alex Rodrigues, the appellant/plaintiff herein conducted the marriage ceremonies and expenditure of his 3 sisters. Therefore, he would be entitled for one extra share as per the intent of his grand father Alex Rodrigues, thereby plaintiff is entitled to get 02 shares. To substantiate the same, plaintiff by adducing evidence relies on Ex.P23 to 28, wherein he has purchased certain jewelleries for the marriage ceremonies to be given to his sisters. Therefore, he is entitled to that share as per the WILL.
5. On the contrary, defendant No.2 has examined as DW-1 and defendant No.1 remained ex-parte in the trial Court proceedings. It is submitted that before the First Appellate Court defendant No.1 breathed his last and he is no more. He further submits that defendant No.2 got examined DW-2, as a witness who is none other than his sister. In support of his case to the extent that the plaintiff has not spent for the money as claimed for the marriage expenses of his sisters, but it is the father Lawrence Rodrigues who has spent for the marriage ceremonies. This aspect of the matter has been dealt with before the trial Court in detail and also by the first Appellate Court. 4
6. Having considered there aspects, the trial court on appreciating the oral and documentary evidence produced by the parties decreed the suit of the plaintiff and allotted 1/3rd share to each of the parties, namely, plaintiff and defendants No.1 and 2. The Judgment and decree of trial court was challenged before the First Appellate Court in R.A. No.8 of 2017 by the plaintiff, which came to be dismissed, confirming the judgment of the trial Court. Aggrieved by the aforesaid concurrent findings, the plaintiff is before this Court questioning its legality and correctness.
7. It is the contention of the learned counsel Sri Prasanna.V.R. appearing on behalf of the Appellant that the judgment and decree passed by both the Courts are opposed to law, facts and evidence on record. It is further contended that the judgment and decree suffers from various lacunas including non-appreciation of pleadings and evidence on record and the judgment is on the basis of assumptions and presumptions, which is erroneous in law. It is further contended by the learned counsel for the appellant that the first defendant before the trial court did not file his written statement, hence it is implied that he 5 has accepted the contentions of the plaintiff. On the other hand, though the 2nd defendant filed his written statement claiming 1/3rd share for himself, the first defendant and the plaintiff in pursuance to the registered Will, has admitted the Will relied on by the plaintiff. Therefore, when there is no dispute with regard to the registered Will coming into force there cannot be a dispute that as per the Will, the marriages of the sisters shall be performed atleast by selling one share of the properties.
8. It is further contended by the learned counsel for appellant that as the plaintiff has performed the marriages of his sisters in terms of the aforesaid registered Will, he is entitled to retain one such share in addition to his one share out of the four shares. This aspect of the matter has not been considered by the trial Court and First Appellate Court thereby causing mis-carriage of justice to the plaintiff.
9. Learned counsel for the appellant further contends that the trial Court has assumed that plaintiff has not performed the marriages of his sisters, namely, Veronica and Juliana, merely by relying upon the deposition 6 of DW2, who disputed the factum of marriage having been performed by the plaintiff and who contended that their marriages were performed by their parents, but no such materials is placed on record to establish the same. Further he contends that the trial Court has failed to appreciate voluminous documents as per Ex.P20 to P28 consisting of marriage certificates, invoices for purchasing ornaments for his sisters marriages. Hence, he contends that the finding of the trial Court on Issue No.2 is erroneous on law, facts and evidence on record.
10. Learned counsel for appellant further contends that the trial Court has erred in coming to a conclusion on Issue Nos.3, 4 and 5 and so also Issue No.6 with regard to the relief sought for by the plaintiff. Learned counsel further contends that the First Appellate Court has also erred in not appreciating the material evidence both oral and documentary and has ignored in re-appreciating the evidence as required under Order 41 Rule 1 of CPC. Therefore, he contends that the judgment of the First Appellate Court also suffers from serious irregularity and patent illegality for non-consideration of materials placed on 7 record. Hence, he prays that the judgment and decree of the trial Court, which is affirmed by the First Appellate Court be set aside and reversed by allowing the claim made by the plaintiff. He further contends that in view of the above, substantial question of law arises in the present case on hand. Accordingly, he prays for allowing the appeal.
11. Having heard the learned counsel for appellant at the stage of Admission and on perusal of the impugned judgment of the trial Court as well as the First Appellate Court, I do not find any substantial question of law having been made out by the learned counsel for the appellant to be framed in this appeal. Hence, I do not deem it fit to issue notice to the respondent as this appeal is disposed of at the stage of Admission itself.
12. Having heard the learned counsel for appellant at length and on perusal of the judgment and decree of both the trial Court as well as First Appellate Court, it is an admitted fact that the plaint schedule properties belonged to the grand father of plaintiff and defendants namely, Alex Rodrigues. It is also not in dispute that said Alex Rodrigues 8 executed a Will dated 24.08.1972, wherein he had made arrangements for distribution of plaint schedule properties in the said Will with specific references to arrangements of marriage expenses of Veronica and Juliana, daughters of Mr. Lawrence Rodrigues.
13. The trial Court as well as the First Appellate Court having elaborately dealt with the Will and the contents of the same. The trial Court has categorically come to a conclusion that there is no recital in the Will that the marriage of Veronica and Juliana to be performed by atleast selling one share of the schedule A property and the plaintiff has falsely pleaded this fact thereby he has not come before the Court with clean hands. Further, it is also held by the trial Court that the grand father Alex Rodrigues, who bequeathed the properties in the name of the grand children, had made provision of life estate of the suit properties in favour of the parents of plaintiff and defendants. The trial Court has also come to a conclusion that by reading of the Will - Ex. P 12, which is a registered Will, that if the parents of the plaintiff and defendants in case of facing any financial difficulties to perform the marriages of 9 their daughters, then they may raise the requisite money either by availing loan upon the charge on the properties or by selling a portion of the properties.
14. It is the specific contention of plaintiff that he has performed the marriages of his sisters from his own income and to establish the same, he relies on Ex.P20 to P28, which are marriage certificates, invoices and bills for purchase of jewellary. The trial Court on elaborate examination of Ex.P20 to P28 and oral evidence adduced by the plaintiff has ascertained the fact as to whether plaintiff himself conducted the marriages of his sisters out of his own income and whether the plaintiff had independent source of income to perform the marriages of his sisters.
16. Per contra, the defendant examined himself as DW1 and also examined his sister Veronica Rodrigues as DW2, which is a crucial evidence to decide the case on hand. DW2 in her evidence has specifically deposed that her marriage was conducted by her parents. Therefore, the categorical deposition of DW2 that her marriage was performed by her parents during their life time, falsifies the case of the plaintiff to the effect that he performed the 10 plaintiff to the effect that he performed the marriages of his sisters from his own income as it was specifically mentioned in the will bequeathed by the grand father that in case the parents of plaintiff and defendants are not in a position to garner the necessary finance for conducting the marriages of their daughters, then they could either sell or mortgage a portion of the schedule properties. In view of the fact that the marriages of the daughters was performed by Lawrance Rodrigues and Theresa Pinto Bai during their life time without selling any portion of the property, it is apparent by the documents produced and deposition of DW2 that there was no financial constrains to their parents to perform the marriages of their daughters.
17. It is also not in dispute that as per the registered Will dated 24.08.1972, the property would vest with the plaintiff and defendants only pursuant to the death of their parents namely, Lawrence Rodrigues and Theresa Pinto Bai. It is also admitted by PW1 in his cross examination that during the marriages of his sisters, his parents were alive. Hence the question of plaintiff incurring the expenses for the marriages of his sisters would not 11 have arisen. Even for the sake of arguments if the plaintiff had incurred the expenses out of his own income, then it is the duty of the plaintiff to prove the same, which has not been established by the material evidence oral or documentary either before trial Court or before the First Appellate Court.
18. The contention of plaintiff that he would be entitled to an additional share, as he has incurred the expenses towards the marriages of his sisters would not arise unless he proves the first fact of him incurring the expenses towards performing marriages of his sisters. It is also seen no such covenant is forthcoming in the Will at Ex.P12. Though several documents have been produced by the plaintiff at Ex.P20 to P28, none of the documents clearly establish the fact that he has performed the marriages of his sisters from his own income. Apart from the oral testimony of PW1 no cogent documentary evidence has been produced to substantiate the claim of plaintiff.
19. All these above aspects have been dealt with elaborately by the trial Court as well as First Appellate Court and have arrived at a conclusion that the plaintiff has 12 not been able to establish that he has conducted the marriages of his sisters from his own income and the said issue has been held in the negative and so also the trial Court and the First Appellate Court have held that the plaintiff was unable to prove that he is entitle for the partition to the extent of 2/4th share in the suit schedule A properties. Accordingly the said issue was also held negative against the plaintiff.
20. It was the case of defendants before the trial Court that equal share amongst the three brothers requires to be allotted and accordingly they prayed for allotment of 1/3rd share each. The trial Court on appreciation of entire material evidence both oral and documentary has arrived at a conclusion that the plaintiff having not made out the case for allotment of 2/4th share in his favour, however, would be entitled to 1/3rd share each with the defendants.
21. While considering the appeal under Section 100 of CPC this Court has limited powers to only consider whether there arises any substantial question of law to interfere with the findings arrived at by two Courts. Under Section 100 of CPC this Court cannot sit in the arm chair of 13 the concurrent findings of both the Court to dissect the evidence and the material documents relied on by both the Courts, more so when the First Appellate Court has considered the material evidence both oral and documentary relied on by the parties.
22. While deciding the second appeal, the scope of Section 100 of CPC is not alien anymore with regard to consideration of not only the question of law but to decide on substantial question of law if at all arising from the case. It is also decided in several catena of judgments that concurrent finding of fact cannot be upset by this Court unless the finding so recorded are shown to be patently illegal and perverse which would shock the conscience of the Court only then this Court would interfere under Section 100 of CPC. This Court would also not sit in the arm chair of a fact finding Court and conduct a roving enquiry on re- appreciating and re-evaluating the evidence on record. The concurrent finding of fact and law recorded by both the Courts, in my opinion, cannot be interfered with, as no such patent illegality or perversity has been shown to have been committed by both the Courts. It is also to be seen that 14 both the Courts having held against the plaintiff and in favour of the defendants on the basis of material facts, this Court cannot disturb the same in the guise of substituting its own opinion for that of the Courts below.
23. I do not find any question of law involved in this appeal much less the substantial question of law. The trial Court as well as the first Appellate Court having considered the material evidence both oral and documentary and have rendered right decision in the matter. Accordingly, I do not find any patent, illegality or perversity in the matter with regard to the judgment and decree of the trial Court affirmed by the First Appellate Court. The submission of learned counsel for the appellant that defendant No.1 has died during the pendency of appeal before the First Appellate Court, therefore, the right accrued to the defendant No.1 by virtue of the Judgment and decree of trial Court will now devolve on the plaintiff and defendant No.2, could certainly be worked out in the final decree proceedings unless there is any other claim made out by the any other legal representatives of defendant No.1 other than plaintiff and defendant No.2.
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24. Therefore, I do not find any merit in the appeal. There is no substantial question of law made out for consideration before this Court.
Accordingly, I pass the following:
ORDER
1) Appeal is hereby dismissed.
2) Judgment and decree dated 01.03.2017 in O.S.No.80/2008 passed by Prl.Civil Judge and JMFC., Belthangady and Judgment dated 04.07.2018 passed by Prl.Senior Civil Judge and JMFC., Belthangady in R.A.No.8/2017 are upheld.
In view of disposal of appeal all pending IAs are consigned to records.
Sd/-
JUDGE RR/VK